- Associated Press - Saturday, January 31, 2015

KANSAS CITY, Mo. (AP) - A common sobriety test administered by a Kansas police officer wasn’t enough evidence that a Wichita man was driving under the influence of alcohol and shouldn’t have prompted the officer to ask the man to take a breath test, according to a ruling from the state’s highest court.

William J. Molitor was stopped on Feb. 28, 2009, after leaving a Wichita bar and failing to use his turn signal. Police officer Jeremy Diaz said Molitor struck a curb with his tire as he was being pulled over, had watery and bloodshot eyes, and there was a strong odor of alcohol coming from his vehicle.

Molitor did not slur his words, have trouble providing his driver’s license and other documents or lose his balance while getting out of his vehicle, Diaz said. And while Molitor badly failed the horizontal gaze nystagmus test, he passed two other field sobriety tests, the officer said.

Molitor agreed to the breath test and his blood alcohol content registered at .09, slightly over the legal limit to drive. A more sophisticated test an hour after the stop read .091, the court said.

A district court judge found Molitor guilty of driving under the influence and failing to signal a turn. A state appeals court upheld that ruling.

Molitor’s attorneys argued on appeal that the HGN test had been held by the Kansas Supreme Court to be inadmissible in court for any purpose because it had not been scientifically proven to be accurate and relied too much on an officer’s subjective opinion.

Without the results of the HGN test, the attorneys said, there was not enough evidence for the officer to compel Molitor to submit to the breath tests.

The Supreme Court on Friday agreed, and on a 4-3 vote reversed the conviction and remanded the case back to district court.

“At this point in the state of Kansas, the HGN test has no more credibility than a Ouija Board or Magic 8 Ball,” the court said.

Dissenters on the court said even without the HGN test, Diaz had plenty of reason to suspect that Molitor was operating his vehicle while impaired.

The majority disagreed.

“It is not unlawful to simply drink and drive,” the justices said.


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